In a major decision this morning, the U.S. Court of Appeals for the Fourth Circuit ruled 2-1 that a giant Christian cross in Prince George’s County, Maryland is unconstitutional.
The World War I memorial known as “Peace Cross” is a 40-foot Christian symbol on public property, maintained by the Maryland National Capital Park and Planning Commission. It’s been up since 1925, but the American Humanist Association’s Appignani Humanist Legal Center began urging the local government to take it down in 2012.
When that didn’t happen, the AHA filed a lawsuit in 2014. The subsequent legal battle for the AHA involved a setback at the district level, pushback from conservatives, and an appeal that was opposed by 26 attorneys general from across the nation.
But when the oral arguments took place in December, there was reason to be optimistic. Not only did two of the three judges seem to agree with AHA attorney Monica Miller, the other side argued (not very convincingly) that a giant Christian cross wasn’t a religious symbol.
One of the judges, James A. Wynn Jr., even appeared to laugh at that argument, asking the government attorney point-blank how any reasonable person would ever look at the cross and think: That represents World War I and totally has nothing to do with Christianity!
It’s never wise to assume you know how the decision will pan out. So if church/state separation advocates were optimistic, they kept it to themselves.
But today, the decision came down just as our side had hoped.
And the judges were incredibly blunt about their ruling, even saying at one point that “the sectarian elements easily overwhelm the secular ones.”
… The district court determined that such government action does not run afoul of the Establishment Clause because the cross has a secular purpose, it neither advances nor inhibits religion, and it does not have the primary effect of endorsing religion.
We disagree. The monument here has the primary effect of endorsing religion and excessively entangles the government in religion. The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds. Therefore, we hold that the purported war memorial breaches the “wall of separation between Church and State.”
On what grounds is this justified? Well, take a look at how judges discussed the “secular” aspects of this giant Christian cross:
… one side of the base contains a two-foot tall, nine-foot wide plaque listing the names of the 49 soldiers from Prince George’s County whom the Cross memorializes, followed by a quote by President Woodrow Wilson. However, the plaque is located on only one side of the base, which bushes have historically obscured. Moreover, the plaque is badly weathered, rendering it largely illegible to passing motorists.
A small sign titled “Star-Spangled Banner National Historical Trail” is located on a walking path approximately 600 feet north of the Cross. This small sign — which, like the plaque at the base of the Cross, is not readily visible from the highway — serves as the only formal marker identifying the area as a memorial park by stating, “This crossroads has become a place for communities to commemorate their residents in service and in death.”
Even beyond that, said the judges, “the Cross is not located in an area where one could easily park, walk to the Cross, and examine the plaque.”
The point is that a reasonable person who came across the cross would assume it’s a monument to Christianity. It’s no different, the judges said, from a stand-alone Ten Commandments monument outside a courthouse, which the Supreme Court has already said is illegal.
… a reasonable observer would know that the Cross is dedicated to 49 World War I veterans and that veteran services occur at the Cross. But, more importantly, a reasonable observer would also know that the private organizers pledged devotion to faith in God, and that same observer knows that Christian-only religious activities have taken place at the Cross. No party has come forward with any evidence to the contrary… Further, the reasonable observer would know that a Latin cross generally represents Christianity. These factors collectively weigh in favor of concluding that the Cross endorses Christianity — not only above all other faiths, but also to their exclusion.
The judges added that their analysis doesn’t necessarily mean other veterans’ memorials with Christian symbolism have to come down. Their ruling only applied to this case.
They also said there was “excessive entanglement” between the government and religion in this case, since the Commission “owns and maintains the Cross.”
What happens now? The case will be sent back down to the district level and both sides will have to decide how to resolve this issue. For example, maybe the giant Christian cross can be donated to a local church that will also cover the costs of maintenance. The judges didn’t propose anything in particular (like “removing the arms or razing the Cross entirely”).
Here’s another thing you might miss from media accounts of today’s decision.
When responding to the oft-repeated claim from conservatives that no one sued for 90 years, so what’s the big deal?, the judges said in the ruling and a large footnote that there’s a good reason for that, and it applies to Maryland specifically.
In this case, it cannot be said that “the longer the violation, the less violative it becomes.”
Of note, a person who dared bring a challenge to the Cross for much of those 90 years would have faced possible rebuke. For example, atheists were forbidden from holding public office until the Supreme Court’s intervention in the 1960’s. In 1959, the Governor of Maryland appointed Roy Torcaso as a Notary Public, but the Secretary of State of Maryland refused to issue the commission because Torcaso, an atheist, would not declare a belief in the existence of god… The Maryland Constitution provides, “No religious test ought to be required as a qualification for any office of profit or trust in this state other than a declaration of belief in the existence of God.” The Supreme Court deemed the clause unconstitutional declaring that Maryland had “set up a religious test which was designed to and, if valid, does bar every person who refuses to declare a belief in God from a public office of profit or trust in Maryland”… More than 50 years later, the constitution still contains the offending provision.
In short, atheists have good historical reasons to avoid fighting a case like this, so the fact that no one sued for decades shouldn’t be held against them.
Damn, I love this ruling.
If the County wants to recognize veterans, they should have a memorial that does exactly that, without pretending like non-Christian soldiers never existed. The AHA isn’t anti-military, anti-veteran, or anti-Christian. They’re not ungrateful for the sacrifices made by those who gave their lives fighting for this country. They just want the government to play by the rules and honor everybody.
Promoting Jesus isn’t the way to do that.
You can expect critics to lash out against the AHA very soon, but ultimately, the judges were right in saying this memorial effectively promotes Christianity.
No word yet on whether the ruling will be appealed again.
***Update***: The AHA issued this statement:
“The court correctly ruled that the cross unconstitutionally endorses Christianity and favors Christians to the exclusion of all other religious Americans,” said Monica Miller, senior counsel from the AHA’s Appignani Humanist Legal Center.
“Government war memorials should respect all veterans, not just those from one religious group,” said Roy Speckhardt, AHA executive director. “Religious neutrality is important in a pluralistic society like ours.”